Date: Wed Dec 21 15:45:11 2005
From: perry at piermont.com (Perry E. Metzger)
Subject: Re: [Antisocial] Re: [Clips] Why Bush Approved
	the Wiretaps (fwd)


"Jason Coombs" <jasonc@...ence.org> writes:
> Perry E. Metzger <perry@...rmont.com> wrote:
>>   Electronic surveillance means
>>   (1) the acquisition by an electronic, mechanical, or other
>>       surveillance device of the contents of any wire or radio
>>       communication sent by or intended to be received by
> ...
>
> Dear Perry, et al:
>
> I think you're missing the key clue as to what was actually done,
> and thus why it was done in the manner chosen, and why it is now
> being defended by the Bush Administration as being legal.
>
> All of the statutes quoted, and every other one of which I am aware,
> prohibit the INTERCEPTION of the CONTENT of communications.
>
> Nothing presently prohibits the automated processing of the content
> via software when the content is not captured/intercepted, nor
> excerpted/preserved for law enforcement's review. A computer system,
> designed to circumvent the intent but comply with the letter of
> present law, can legally do what a person cannot.

I'm afraid your interpretation is not consistent with the law. The law
defines electronic surveillance in a specific way, to whit:

    (f) Electronic surveillance means
    (1) the acquisition by an electronic, mechanical, or other
        surveillance device of the contents of any wire or radio
        communication sent by or intended to be received by a particular,
        known United States person who is in the United States, if the
        contents are acquired by intentionally targeting that United
        States person, under circumstances in which a person has a
        reasonable expectation of privacy and a warrant would be required
        for law enforcement purposes;
    (2) the acquisition by an electronic, mechanical, or other
        surveillance device of the contents of any wire communication to
        or from a person in the United States, without the consent of any
        party thereto, if such acquisition occurs in the United States,
        but does not include the acquisition of those communications of
        computer trespassers that would be permissible under section 2511
        (2)(i) of title 18;
    (3) the intentional acquisition by an electronic, mechanical, or other
        surveillance device of the contents of any radio communication,
        under circumstances in which a person has a reasonable expectation
        of privacy and a warrant would be required for law enforcement
        purposes, and if both the sender and all intended recipients are
        located within the United States; or
    (4) the installation or use of an electronic, mechanical, or other
        surveillance device in the United States for monitoring to acquire
        information, other than from a wire or radio communication, under
        circumstances in which a person has a reasonable expectation of
        privacy and a warrant would be required for law enforcement purposes.

As I read that, I see no requirement that a human being be involved.
If an electronic, mechanical or other surveillance device *acquires*
the content, even if no human then looks at it, you've conducted
"electronic surveillance". I'm well aware that in places like New York
State there is a distinction between "Pen Register" and "Wiretapping"
activities, but there is no such distinction in the FISA.

I suggest that, in coming up with creative interpretations of the
situation, you read the law first to see if your interpretation is
consistent with the law.

Perry

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